By Katelyn Burns
On Wednesday, June 5, Rep. Joe Kennedy (D-MA) and Sen. Ed Markey (D-MA) introduced bills that would ban the use of LGBTQ+ panic defenses on a federal level to the U.S. House and Senate. Such bills have been a long time coming: The American Bar Association called for an end to the practice of such defenses in 2013, while four states — California, Rhode Island, Illinois, and Nevada — have already banned the defenses. (Several other states have legislation currently under consideration.)
“Panic defenses” are legal arguments used by defendants who stand accused of murder or assault of aLGBTQ+ person, and often work slightly differently from each other. The “gay panic” defense is most often levereaged by straight men against gay men, and involves the claim that they became so psychologically shocked at a gay person flirting or otherwise interacting with them that they fly into a rage that justifies violence. This was the defense used unsuccessfully by one of the men who murdered Matthew Shepard in 1998. The trans panic defense works with the same basic argument, though typically by cisgender men who claim they were misled by a trans woman who didn’t disclose their trans status up front.
“The idea is that any reasonable person would be so horrified and upset and shocked that they could momentarily lose their ability to reason and would be justified in engaging in violence and responding in a violent way,” said Shannon Minter, an attorney at the National Center for Lesbian Rights, in an interview with MTV News. “It’s really horrifying, it’s a really horrible concept.”
Introduction of the bills are especially timely, as at least five Black trans women have been murdered in the last few weeks; Dallas authorities have also called on the FBI for help in investigating a rash of violence against trans women in the area. According to Minter, murderers of trans women of color are already rarely caught by police investigators, and the trans panic defense has become a significant stumbling block in the pursuit of justice.
The legal challenge presented by these panic defenses have finally caught the notice of federal lawmakers, who introduced the bills to coincide with Pride month. “Our courtrooms are supposed to be chambers of justice, not hate,” said Markey in a statement announcing introduction of the bills. “So-called gay and trans panic legal defenses perpetuate bigotry and violence toward the LGBTQ community and should be banned. They corrode the legitimacy of federal prosecutions, and blame victims for the violence committed against them.”
Legislative prospects for the bill are unclear at this point, as Republicans in both chambers have vociferously fought back against any legislation that might benefit the trans community in this congressional session, including trans protections in the Violence Against Women Act. The Trump administration has also rolled back nearly every Obama-era policy advance benefitting trans people in the US. However, in 2017, former Attorney General Jeff Sessions did promise to more aggressively investigate and prosecute hate crimes against transgender victims; it remains to be seen what comes of that vow.
According to Minter, panic defenses are most commonly used to knock murder charges down to manslaughter. “There’s a whole constellation of issues that are so connected,” he said. “One is that so many murders of gay and transgender people are not investigated or prosecuted in the first place. Then even when they are investigated and prosecuted, there’s a tendency to, from the very outset, not seek the same charge that would be sought for a non-gay or non-transgender person. Then the availability of this defense is yet another related factor. When you add all of these factors up, it certainly contributes to the situation that we see in the papers every day now — that gay and particularly now transgender lives are just devalued.”
The trans panic defense in particular plays on social assumptions regarding transgender women. For decades, trans women have been falsely accused of trying to “trick” straight men into sex and many works of popular media have unfortunately only reinforced that perception. Indeed, if you look at social media comments attached to stories about murdered trans women, a common reply is one from transphobic people who blame a trans woman for not disclosing her trans status, a harmful belief that puts the onus on trans women rather than on their murderers.
All of these claims often fall flat once all of the facts come to light. In 2015, Josh Vallum brutally murdered 17-year-old trans woman Mercedes Williamson in Mississippi, an attack he planned for several days in order to keep his fellow gang members from learning that he had knowingly slept with a trans woman. (He had previously lied about the encounter in an interview with the Biloxi Sun-Herald.) In 2017, Vallum became the first person ever convicted under federal hate crime legislation for killing a transgender person.
“Very often when there is an actual prosecution and investigation of those murders, it becomes perfectly clear that the person of course knew that their partner was transgender,” said Minter, who cited the case of the murder of Angie Zepata, an 18-year-old trans woman in Colorado who was killed in 2018 by her boyfriend. “He just lost his temper in an act of domestic violence and he absurdly claimed that he didn’t know she was transgender.”
The trans panic defense in particular gives leeway to any man dating a trans woman to commit domestic violence with a socially approved excuse. The end result is men who date trans women can threaten violence and perpetuate abuse in return for secrecy. It makes trans lives disposable, particularly in the face of male violence.
“The availability of that defense sends the message to men in particular that their violence towards their transgender partners will be tolerated,” said Minter. And while passing legislation banning panic defenses sadly won’t end violence against LGBTQ+ people, doing so will send a crucial message that such hate crimes are unacceptable on a federal level.